The public often hears about due process violations in schools and universities after an accused student files a Title IX claim in federal court. It is important to remember, though, that there may be an internal appeals process as well as an opportunity to appeal to Washington state court when a student faces disciplinary action as the result of a Title IX investigation. As an example, a state appeals court recently vacated a state superior court’s judgment upholding a student’s expulsion based on a sexual misconduct allegation.
The case arose after a female student reported an alleged sexual assault to the police department. No criminal charges were brought. Five months after the incident, the female student filed a report with the university police department.
The Dean of Students Office notified the respondent its investigation found “it was more likely than not [the respondent] engaged in non-consensual sexual activity” with a woman he knew was incapacitated. The respondent was found responsible for violating the sections of the Code of Conduct relating to furnishing alcohol to an underage person (§ F(15)) and sexual misconduct (§ F(23)). The Dean of Students Office ordered the respondent expelled. The respondent asked for a hearing.
The University Hearing Board was unable to determine if the complainant was incapacitated and unable to consent based on the evidence. The Board did find, however, that the respondent violated § F(23) by engaging in sexual contact “perpetrated against a person by force.” It also found he violated § F(15). The Board also recommended expulsion to the final decision-maker, the Senior Vice President for Educational Outreach and Student Services (VP). The VP accepted the Board’s findings and recommendations related to the alcohol charge, as well as the factual findings and determination that the respondent engaged in sexual contact by force. He rejected the Board’s conclusion regarding incapacitation, however. He found the complainant was incapacitated and that the respondent knew it. He upheld the expulsion. He then denied the respondent’s request for review and rehearing. The superior court affirmed the university’s decision and the defendant appealed.
The respondent argued the incapacitation finding was not supported by substantial evidence. The Code of Conduct did not define “incapacitated” but stated that everyday and common usage applied to words that were not defined. Based on the Code of Conduct, the court inferred “incapacitated” meant a person was “physically or mentally unable to make informed, rational judgments.”
The VP cited the evidence he relied on in reaching his decision, including the number of shots the complainant drank, her purported inexperience with alcohol, and her testimony she was “extremely drunk” and had to support herself against a wall. She told the police she could not move or try to physically stop the incident. Additionally, a witness said the complainant was “really drunk” and “needed help standing up” when she left the bedroom.
The appeals court found the VP had relied primarily on the complainant’s own statements. The court noted no one else testified she had been incapacitated. No one else testified she was passed out or unable to communicate.
According to the court’s opinion, the VP cited the complainant’s testimony that she did not remember how she became undressed, but the complainant had given great detail to the police and at the hearing. The Board, who heard that same evidence, found the complainant was “lucid and able to verbally communicate.” The court also referenced the respondent’s expert witness, who questioned the complainant’s ability to hold herself up during the incident as she described if she was so drunk she could not stand up on her own.
The appeals court went into a detailed discussion of the description the complainant gave of the incident and ultimately found that a reasonable mind could not conclude the university proved the complainant “was unable to make ‘informed, rational judgments’ on the night in question.” The VP’s determination related to incapacitation was an abuse of discretion.
The respondent also argued the finding related to force was not supported by substantial evidence. The appeals court found no evidence the complainant ever stated the respondent used violence, intimidation, or threats. According to the appeals court’s opinion, she told the police “she was not held down or threatened…” The appeals court again considered the complainant’s description of the incident, as well as the report from her sexual assault examination. The appeals court found substantial evidence did not support a finding of force and the VP abused his discretion in finding the respondent violated § F(23) on those grounds.
The respondent also argued the alcohol finding was not supported by substantial evidence. The complainant testified she was 19 and that the respondent poured shots for her. The respondent also testified he had poured her a shot. The appeals court found there was substantial evidence supporting this charge.
Although the respondent raised due process issues, the court declined to consider them due to its other findings. The appeals court vacated the trial court’s judgment and remanded to the university to determine the appropriate sanction for the alcohol violation.
This opinion addressed the respondent’s appeal of his expulsion, but his Title IX claims are still pending in federal court. The district court recently ruled on the defendants’ motion to dismiss. Although some claims were dismissed, the court allowed the respondent’s Title IX claims to proceed. The federal court acknowledged that a state court ruling could affect the federal case, but is unclear at this time what, if any, effect the state appeals court’s opinion will have on the remaining claims in the federal case.
The processes for university disciplinary actions are complex and are often not designed to ensure the accused student’s rights are protected. It is important to have an experienced Washington Title IX defense attorney standing with you if you are facing a Title IX investigation. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.